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But what about a situation where there are little or no economic damages, just pain and suffering? What if, for instance, Chris had died?
Take the Dalkon Shield case. As many as 100,000 American women who used this intrauterine birth control device during the 1970s discovered the nasty little secret that it often caused infections and in the worst cases, rendered them sterile. What's more, the Dalkon Shield's manufacturer, A.H. Robins, knew its product was rotten. The company paid out millions of dollars in damages between 1974 and 1984, and eventually agreed to pay a $2.4 billion settlement.
In that case, as in the case of the much-talked-about Wisconsin woman who underwent a radical double mastectomy when her mammogram tests were bungled by three separate health care providers, there were few actual medical expenses. Instead, the outrage and the damage to justice centered on their pain and suffering.
In the Wilsons' case, their attorney incurred more than $100,000 worth of expenses -- from copies to arranging for the deposition of an expert witness -- just to get the case ready for trial. That doesn't include a cut for fees. The expenses in the Wilsons' case are not unusual. So if pain and suffering was the only significant award a plaintiff could receive, with a $250,000 cap, there would be little left once an attorney's fees were extracted.
Most important, if the Georgia law is changed to dramatically lower non-economic damages, good lawyers simply won't take those cases. Most attorneys are essentially small-business owners, and they would be looking at too much risk for too little payoff.
"Fewer of those cases will be brought and fewer will end up in court, and of course, that's the desired effect," Eaton says.
And that diminishes our justice system.
"If ... recovery is limited to economic loss it's going to be substantially different than what the real harm is," Eaton says. "By putting this cap on, you are systematically undervaluing something that is of real value to a specific group of people in society. To that extent it diminishes, it doesn't eliminate, but it diminishes the sense that 'I've received justice.'"
So what is to be done? Malpractice premiums continue to rise, though, at only half the rate of medical costs. So you've got a situation where docs are jacking up the price of colon probes much more than the cost of insurance. Medical costs have actually increased 113 percent since 1987, which of course, results in larger malpractice awards.
That said, it would be irresponsible to completely ignore potential harm caused by rising liability premiums. Consumer advocates and politicians offer a number of alternatives -- everything from encouraging competition among insurance providers to stricter regulation of the market to the creation of a fund that would help insurance companies get through downturns in the economy. And there are elements of tort reform that seem reasonable, such as tougher requirements of expert witnesses that would ensure they are experts in the fields in which they claim knowledge, for example.
Price, though, hits on perhaps the single most important way to reduce medical malpractice claims ... by accident. He claims that the threat of large jury awards is unnecessary and that the prospect of being disciplined by Georgia's Composite State Board of Medical Examiners is deterrent enough. After all, the Senate majority leader says, the board is "one of the tougher in the nation for medical providers who run afoul."
Price is dead wrong.
Compare the rate at which Georgia disciplines its doctors to the rest of the 50 states and it ranks right in the middle. According to numbers compiled by consumer advocacy group Public Citizen, Georgia disciplines just 6.64 percent of all physicians who have paid medical malpractice claims during the past year. The best state, Colorado, averages a 17.27 percent discipline rate.
Meanwhile, the Institute of Medicine estimates that 44,000 to 98,000 Americans die in hospitals each year because of "preventable medical errors." The annual costs of such errors to the victims, including lost wages and personal costs of care, is estimated at $17 billion to $29 billion.
The vast majority of doctors don't make catastrophic mistakes. Statistics suggest there are only a few bad apples. Nationally, just 5.1 percent of doctors are responsible for 54.2 percent of all medical malpractice payouts, yet only 7.6 percent of the bad apples are disciplined. So what you have is a nationwide crisis in the failure to discipline doctors.
"The point we've made is that you really need to prevent malpractice," says Dr. Sidney Wolfe, head of Public Citizen's Health Research Group. "If you really get a grip on the issue or crisis of inadequate doctor discipline, you not only will prevent the small fraction of these people who sue from suing, because they're not going to get injured, but you'll also protect a much larger number of people who are injured or killed through negligence."
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